On Monday, April 16, 2018, the United States Supreme Court denied a request by Johnson & Johnson to review a whistleblower case against the company’s subsidiary, DePuy Orthopaedics, Inc.. Johnson & Johnson requested that the high court review a July ruling by the First Circuit Court of Appeals that revived a whistleblower lawsuit against the company.
The lawsuit was filed by British orthopedic surgeons – Antoni Nargol and David Langton – who alleged that DePuy marketed defective metal-on-metal Pinnacle-branded hip implant devices to doctors who then turned around and sought government reimbursement for the products. Nargol and Langton had previously implanted the Pinnacle devices in patients and have served as expert witnesses in product liability cases against DePuy.
In 2012, Nargol and Langton filed a False Claims Act suit alleging that the company made false statements to the Food and Drug Administration (FDA) about the safety of the Pinnacle devices. They also accused DePuy of dumping latently defective devices on doctors, who would then unknowingly submit claims for reimbursement to Medicare and Medicaid for the flawed products.
DePuy’s lawyers had argued that the First Circuit wrongly overturned the decision that dismissed the case because the doctors had not alleged any specific false claims for payment were submitted in violation of the False Claims Act. The First Circuit determined that the lawsuit was sufficient with the simply fact that DePuy allegedly caused doctors to submit false claims for reimbursement to the federal government and New York state.
DePuy wanted the Supreme Court to review the case because it has now created a circuit split about with what particularity a whistleblower’s complaint must state the false claims for reimbursement were submitted to the government for payment. DePuy, through its lawyers, noted that five circuits require specificity, including dates and amounts of false claims, while six circuits take a more relaxed approach, allowing the complaints to simply show “reliable indicia” that the false claims were submitted.
The Pinnacle hip implant devices are no longer sold but continue to be the subject of many product liability lawsuits. Two federal trials resulted in verdicts totaling well over $500 million after post-trial reductions for the product.
Justice Samuel Alito took no part in considering the petition by the company, as financial disclosure documents show he holds Johnson & Johnson stock.